Bayer’s One A Day chewable vitamin label is misleading,...

1of 2Bayer contends that consumers should be expected to read the fine print on the labels of its vitamins to get an accurate understanding of what they’re buying. Not so, said a state appeals court on Friday, Sept. 7, 2018, in ruling against the company’s labeling on its one-a-day chewable vitamins, which tells purchasers in small print on the back that the proper dose is actually two a day.Photo: Steve Debenport / Getty Images

2of 2Bayer, which also makes this aspirin, contends that consumers should be expected to read the fine print on the labels of its vitamins to get an accurate understanding of what they’re buying. Not so, said a state appeals court on Friday, Sept. 7, 2018, in ruling against the company’s labeling on its one-a-day chewable vitamins, which tells purchasers in small print on the back that the proper dose is actually two a day.Photo: Eckehard Schulz / Associated Press 2009

A popular brand of chewable gummy vitamins bears the One A Day label, but the proper dose is actually two a day — and that’s enough for a consumer-deception lawsuit, a state appeals court ruled Friday, because the truth can be found only in fine print on the back label.

“The front label fairly shouts that one per day will be sufficient” and “makes no attempt to warn the consumer that a one-a-day jar of gummies is in fact full of two-a-day products,” the Fourth District Court of Appeal in Santa Ana said in a ruling reinstating a class-action suit against the manufacturer, Bayer AG.

“Even judges can do enough math to know two does not equal one.”

Bayer’s One A Day capsule vitamins, sold since the 1940s, contain the fully recommended daily dose in each tablet. Its chewable VitaCraves gummies, marketed more recently to appeal to youngsters and to adults who prefer a sweeter taste, contain half that dose. The front label reads “One A Day” in large letters, while the back label, in much smaller print, lists the ingredients and instructs users to “chew two gummies daily.”

Bayer denied deceiving consumers and argued that buyers could be expected to read the labels before purchasing and consuming health products. A federal judge in Oakland agreed and dismissed a separate lawsuit last year, a ruling now being challenged in the Ninth U.S. Circuit Court of Appeals in San Francisco. An Orange County judge also accepted the company’s argument and dismissed a suit filed in 2016 that claimed violations of state consumer-protection and warranty laws.

But the appeals court said the makers of One A Day had “spent 75 years convincing the public they could be trusted to divine its vitamin needs” and must expect at least some consumers to rely on their packaging.

While some product labels contain puffery that won’t be taken literally, the court said, suits have been allowed over labels containing false statements — granola bars labeled as “natural” that actually contained corn syrup, or locks labeled “Made in USA” that included parts made in Taiwan.

Likewise, the Ninth Circuit allowed a suit to proceed in 2008 against manufacturers of a baby food whose front label described it as vitamin-rich “fruit juice snacks,” while the back label disclosed that the main ingredients were corn syrup and sugar, and the only fruit juice was white grape juice made from concentrate.

Product names have also been ruled misleading, the court said, citing a federal appeals court ruling against the maker of a heartburn medicine called Mylanta Night Time Strength that had no special ingredients for nighttime heartburn.

“Not every vitamin-buyer is a health-conscious consumer preoccupied with exact dosages,” Justice William Bedsworth said in Friday’s 3-0 ruling.

Samantha Smith, a lawyer for the plaintiffs, said the suit seeks damages for misled purchasers and a change in the product’s label “so that it’s not deceptive.” Attorney General Xavier Becerra’s office also argued that the suit should proceed.

Bob Egelko has been a reporter since June 1970. He spent 30 years with the Associated Press, covering news, politics and occasionally sports in Los Angeles, San Diego and Sacramento, and legal affairs in San Francisco from 1984 onward. He worked for the San Francisco Examiner for five months in 2000, then joined The Chronicle in November 2000.

His beat includes state and federal courts in California, the Supreme Court and the State Bar. He has a law degree from McGeorge School of Law in Sacramento and is a member of the bar. Coverage has included the passage of Proposition 13 in 1978, the appointment of Rose Bird to the state Supreme Court and her removal by the voters, the death penalty in California and the battles over gay rights and same-sex marriage.